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Ethics of Indian Surrogacy: the Con of Indian Surrogacy and the Problems It Causes

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The term surrogacy refers to “a method of assisted reproduction and is used when a woman carries a pregnancy and gives birth to a baby for another woman” (Medical Tourism par 3).  There are two types of surrogacy; the gestational and traditional/natural surrogacy. Gestational surrogacy is the most common form in which a woman carries a pregnancy created by the egg and the sperm of a genetic couple. Kharb cites that in gestational surrogacy, a woman egg is fertilized in vitro by the husbands sperms using the In Vitro Fertilization/Intracytoplasmic Sperm Injection (IVF/ICSI) procedure and the resulting embryo implanted into the surrogates uterus (12). The surrogate carries the full term of the pregnancy although the unborn child is not genetically linked to the surrogate. On the other hand, traditional surrogacy is where the surrogate is inseminated with the sperms oft he male partner of an infertile couple thereby the giving fourth a child with genetic links to the surrogate mother and the male partner and not the  female partner.

Many infertile couples are embracing the modern In Vitro Fertilization techniques to acquire babies. This has been enabled by technological advancements that have culminated “the inventions of Assisted Conception Treatments that have seen the surrogates carry babies who are biological children of infertile parents” (Carney 16).

The issue of “surrogacy has raised a number of legal, ethical and moral debates in many countries” (Kharb 12). The process of arranging for surrogacy is time consuming and often involves emotional, medical, legal and financial issues. The number of children available for adoption is dramatically reducing. However,   individuals are in constant need for children thereby giving them room to explore other options of getting children; the use of surrogacy.

India has hit the headlines in the past for their affordable rates of surrogacy. “While surrogate arrangements may cost up to $80, 000 in a legally complicated process, in India, it only costs about $10, 000 to $28, 000 in India” (Medical Tourism 2 par 6) These are costs that include the complete package of fertilization, surrogates fee and the baby delivery  in clinics and hospitals. It is believed that even if the costs of flight tickets, hotels and medical procedures were included, surrogacy in India would still amount to about a third of what is paid in most developed economies such as the United States.

The rush to India has been because of the availability of relatively cheap surrogates most of whom are from poor backgrounds and are financially impaired. It has also been due to the flexibility and minimal regulations. Given that surrogacy is a commercial issue in India, India is emerging as a leader in international surrogacy and is a prolific destination for surrogacy related fertility tourism. “Physician oversaw an estimated 1500 surrogacy births both for domestic and overseas couples in 2010, a 50% increase in two years. The specialty is a tiny part of a fertility treatment business, including In Vitro Fertilization, hormone treatment and egg and sperm donation that are on target to reach $2.3 billion in 2011” (Medical Tourism par 10).

Why People Consider Surrogating

Surrogating may be considered where the woman has undergone hysterectomy or has had part of her uterus removed and wishes to have a child. It has also been considered in gay marriages and where health conditions of the man and/or the woman cannot allow for the natural fertilization of the ova by the sperm or when there is incapacitation in the reproductive health of the individual(s) concerned. There have been cases though, where career couples have chosen the path of surrogacy owing to work demands and tight schedules.

Cons (Disadvantages) and Problems of the Indian Surrogacy

Indian surrogacy though cheap and has few limitations as compared to the Western States, has not failed to have its own share of disadvantages. These include “a relative lack of red tape and a quarter pay of those in the United States or Europe” (Burke 1). The rates are very low, but these are considered by the Indian women as being high since it is equivalent to fifteen years wages in formal employment.

Additionally, there is a general emotional attachment to the unborn child so the detachment from the child after birth results in emotional burdens. Burke cited that "it is natural that when it is inside you for nine months you have some feelings. But from the beginning we are conditioned not to involve our emotions, when they take the child, those days are a bit tough"(1). Although the surrogates are taught from the moment they begin to carry a pregnancy not to attach emotions to the baby after birth, it is only natural to think about a baby that one carried in pregnancy for nine months even after being taught otherwise. Subsequent pregnancies would mean more emotional disturbances especially in case where traditional surrogacy is used.

As the surrogates go through their share of emotional and psychological upheavals, the parents to be are generally left in suspense about the pregnancy and only get the information from mails, through internet and/or phone calls. The parents to be also worry about the events that the surrogate mother refuses to hand over the baby to the biological parents. This would result in court battles that might run up to decades. The Indian law recognizes the nationality of the child as being same as the mother’s nationality. This uncertainty is worrying for the parents to be. In addition, the biological parents may not know the surrogate properly, given that the couple and the surrogate especially if from different countries may only meet shortly after the meeting is facilitated by an agency or a clinic. The entire pregnancy period may only be covered by on line or on phone communications between the surrogate and the couple.

Although the Indian law requires that the child’s parents be present during birth, in surrogacy, this legal requirement might not have significance. This is because “there are country specific laws on child adoption and surrogating. Some countries do not support child acquisition by surrogating and couples from these countries may have a lot more legal frameworks to deal with before the baby can finally get home” (Burke 1). The parents to be will therefore be required to find out the prevailing laws of individual countries from their consulates in India so as to understand how to expedite the baby to their home country. This process is overwhelming, time consuming, and emotionally draining especially for first time parents.

The lawyers who are hired during the expedition process might not be straight forward thereby causing delays in terms of time which in the long run results in financial loss. In his arguments, Kharb believes that there have been increasing financial irregularities and ethical shenanigans because of the huge profits that are made from being a fertility expert. This leads to the increase of experts in theory (less or completely not qualified professionals) who do not come in for the expertise that they hold, but for the big moneys and profits that can make one rich overnight (10). There are too many people either operating backstreet clinics and/or making referrals to unregulated clinics that put a surrogate mother on a health risk and the parents to be on a financial risk.

At the same time, there have been cases where the surrogates have been discriminated against by close relatives and friends. This coupled with social stigma of being outcast in society has forced the clinics where surrogacy services are offered to cage/keep the women in their premises for the nine months period of pregnancy. This allows the surrogates health to be monitored and also keep the secret of being paid to carry the child. Generally, India has a conservative culture and the native Indians believe that a woman cannot carry a pregnancy except she conceives through sexual intercourse. This has increased prejudice that is being experienced by surrogate mothers. Their emotional woes are therefore not just pregnancy related, but, also community and socially related.

It is not always definite that all fertilizations and surrogacy would be 100% successful. There have been reports of parents whose initial trials did not result in pregnancy. This has been due to variables like “the surrogates’ ability to carry the pregnancy to term, ability to conceive and the sperm count. The complicated nature of the procedures IUI and IVF has not made work any easier for parents to be” (Carney 6).  If unsuccessful pregnancies occur repeatedly, the cost of getting the baby through surrogacy becomes expensive in the long run since every attempt has to be paid for. Costs are not limited to the medical procedures that are carried out; they spread to areas such as, the psychological screening of the surrogate, medical tests carried out prior to embryo transfer and after the transfer, surrogate compensation fees, one year fee for surrogate food and in clinic boarding, hospital charges for services and procedures until birth, doctor charges and escort to the and surrogate post delivery care among others.

Evidently, there are increasing cases of abandonment of the unborn babies by the parents to be. There are surrogates who have been left to care for babies that are not genetically theirs. Although there are guidelines on how surrogacy ought to be carried out as provided by the Indian Council for Medical Research, they have not entirely been implemented. “Indian women have been left vulnerable to exploitation by backstreet professionals in the commercial surrogacy market” (Kharb 10). The Indian parliament hence has been debating on new surrogacy laws that will establish a clear regulatory framework to reduce exploitation in the commercial market and recognize agreements as legally binding. “The Assisted Reproductive Technologies Regulation Bill 2010 introduces a set of legally binding rights and restrictions for all parties involved. Under the Bill, foreign commissioning individuals or couples must prove that surrogacy is permitted in their home countries and that any resulting child will be permitted entry - and be recognized as the biological child of the commissioning individual or couple. Foreign parents must also appoint a local guardian, who will be responsible for the surrogate and baby until the baby is collected. If by any chance the baby is not collected, he/she remains the responsibility of the local guardian to hand over the child to an adoption agency as per the Indian Law” (Hyder par 2 & 3).

In conclusion, India being the only country where commercial surrogacy is legalized, she has experienced an influx of couples and/or individuals wanting babies by surrogating. The influx of foreigners mostly from the Western States has created the need for more clinics to be built to cater for the new entrants. The boom of surrogacy in India has been escalated by flexible rules as compared to rules on surrogacy in countries such as Canada. This has resulted in the exploitation of the surrogate mothers by agencies and unscrupulous clinic owners. Apart from the well known pregnancy related diseases, surrogate mothers are also faced with the challenges and risks of multiple births that are mostly associated with surrogating and in Vitro Fertilization techniques. There are also psyche problems that result from the surrogate mothers being kept away form their families during the period of pregnancy.

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